The Asylum Clock &Employment Authorization

by Marshall H. Hong, J.D.www.Hong-Immigration.com

www.ImmigrationInfoSite.com

This presentation is intended only as an overview of the Asylum Clock and its relevance to Employment Authorization eligibility. The information presented is based on EOIR Memorandum dated November 15, 2011, setting forth policy and procedure to be followed by the Immigration Court.

If you have questions regarding your particular situation, you should consult with a qualified immigration attorney.

At the conclusion of this slideshow you will find contact information for the author – please feel free to contact the author if you have specific questions or would like additional information on this topic.

(Disclaimer)

The following terms will be used in this presentation: DHS – Department of Homeland Security (may also

used to refer to the government’s attorneys in a Removal Proceeding)

EOIR – Executive Office for Immigration Review (the Immigration Court is a part of the EOIR)

IJ – Immigration Judge USCIS – U.S. Citizenship and Immigration Services The terms “Applicant” and “Respondent” may be

used interchangeably

Some Definitions & Acronyms

The “asylum clock” measures the length of time that an asylum application has been pending, tracking the number of days elapsed beginning on the date a completed asylum application is properly filed, but not including delays caused by the asylum applicant. please note this presentation will not discuss

general principles of asylum or removal (deportation) – please look for articles on asylum, removal, & related topics at:

www.ImmigrationInfoSite.com

What is the Asylum Clock?

In general, once an individual files an application for asylum with U.S. Citizenship and Immigration Services, the government’s goal is to issue a decision on the application within 180 days after the date on which the application was filed.In the event the application remains pending for more than 180 days after it was filed, an applicant may be eligible for employment authorization – except that “any delay requested or caused by the Applicant shall not be counted as part of these time periods.”

Eligibility for Employment Authorization

An Applicant may file an “affirmative” asylum application with USCIS or, if the individual is already in a Removal (Deportation) Proceeding, he may file a “defensive” asylum application with the Immigration Court, where an Immigration Judge will adjudicate the application.

If USCIS does not approve the affirmative application, it will refer the Applicant to Immigration Court, where the Immigration Judge will review the application for possible approval.

Asylum Applications with USCIS or before the Immigration Judge

The asylum clock begins to run on the date on which the Applicant properly files a complete asylum application, either affirmatively with USCIS, or defensively at the Immigration Court.

If USCIS does not approve the affirmative application, but refers the Applicant to the Immigration Court, the clock will continue to run, including the days during which the application was pending with USCIS.

Starting and Stopping theAsylum Clock

An Applicant files an “affirmative” asylum application with USCIS. The asylum clock begins to run on the date on which the completed asylum application was properly filed with USCIS. If the USCIS Asylum Office refers the case to the Immigration Court after the clock has been running for 60 days, then the Immigration Court’s clock begins running at 60 days, on the date on which it was referred to the Court.

Example

As stated above, the asylum clock will continue to run while the case is pending before an Immigration Judge, except for delays requested or caused by the Applicant. Therefore, each time an Applicant appears before the Immigration Judge, when the case is adjourned, the clock will either run or stop depending on the reason for which the case was adjourned: If the hearing was adjourned because of a delay

requested or caused by the Applicant, the asylum clock will stop.

If the hearing was adjourned because of a delay requested or caused by the government attorneys or the Immigration Judge, the clock will run until the next hearing date.

Starting and Stopping the Clock during Removal Proceedings

If fewer than 75 days are on the clock as of the date on which it is referred to the Immigration Court, the case is treated as an “expedited asylum case”, and the Court should complete the case within 180 days after the date on which the application was originally filed – not including delays requested or caused by the Applicant.(Note: once the Applicant is referred to the Immigration Court, he will be referred to as a “Respondent” for purposes of the Removal Proceeding.)

Fewer than 75 Days at Time of Referral

When the asylum case is treated as an “expedited asylum case”, the Immigration Court should attempt to adjudicate the case within 180 days. If the Applicant/ Respondent waives the expedited hearing, the delay will be considered to have been “requested or caused by” the Applicant, and therefore the asylum clock will stop as of the date on which the Applicant waives the expedited hearing. If there are fewer than 180 days on the asylum clock on the date on which it is stopped, the Applicant will not be eligible for employment authorization.

Fewer than 75 Days at Time of Referral (continued)

If more than 75 days are on the clock as of the date on which it is referred to the Immigration Court, the case will not be treated as an “expedited asylum case” and will not be subject to the 180-day adjudication deadline. The asylum clock will run and stop as usual.

More than 75 Days at Time ofReferral

If an Applicant is not eligible for Asylum (for example, where the Applicant failed to file his application for asylum within 12 months after entering the U.S.), he may still be eligible for Relief from Removal in the form of Withholding of Removal or protection under the Convention Against Torture (“CAT”)*.In these cases, there is no asylum clock, and therefore no eligibility for employment authorization. for more on these topics, please visit:

www.ImmigrationInfoSite.com

Withholding of Removal & the Convention Against Torture

Once a future hearing date has been scheduled by the Immigration Judge, it may be cancelled and rescheduled to a later date, either at the request of one of the parties (the Applicant or the DHS attorneys), or by the Immigration Court without the request of either party: If the case is rescheduled at the request of the Applicant,

the clock will stop (or remain stopped) as of the date on which the hearing was originally scheduled to take place.

If the case is rescheduled at the request of the DHS, or by the Immigration Court on its own motion, the clock will begin to run (or continue to run) as of the date on which the hearing was originally scheduled to take place.

Rescheduled Hearing Dates

Under certain circumstances, and Applicant/Respondent may file a motion with the Immigration Court for a “Change of Venue”, requesting that the case be transferred from an Immigration Court in one city to an Immigration Court in a different city. If the IJ grants the motion, then the asylum clock will stop running (or remain stopped) from the date the motion is granted until the next hearing (in the new location).On the other hand, if the DHS attorneys request the Change of Venue, and the IJ grants the motion, the asylum clock will continue to run (or begin to run) from the date the motion is granted until the next hearing (in the new location).

Change of Venue to Another Immigration Court Location

Once an Immigration Judge issues a final decision on a Respondent’s asylum application, either party may appeal the IJ’s decision. However, the asylum clock permanently stops once the IJ issues his or her decision. Accordingly, if a decision is entered before 180 days have elapsed, the Applicant will not be eligible for employment authorization during the time the appeal is pending.

Cases on Appeal

The asylum clock will determine whether, and when, an asylum applicant may be eligible for employment authorization. This presentation is intended only as a brief overview of how the asylum clock works, including when and why it starts and stops. For a more in-depth discussion of the asylum clock, please look for articles and other materials on this topic at:

www.ImmigrationInfoSite.com

Conclusion

For more information on Refugee and Asylum Law, and related issues such as Relief from Removal and Temporary Protected Status, please look for articles, videos, slideshows, and other materials at:

www.ImmigrationInfoSite.com

Thank you!!

More on Refugees, Asylees, and other Immigration Law Issues

For More Information, visit us at:

www.ImmigrationInfoSite.comwww.Hong-Immigration.com

or contact Marshall Hong by email at:

Marshall@Hong-Immigration.com